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Recording of Evidence on Affidavit in Proceeding U/S 125 of CrPC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAI, APPELLATE JURISDICTION
CRIMINAL REFERENCE NO.3 OF 2OO7

Mr. K.V. More
3.d Jt. Civil Judge (J.D.)
& J.M.F.C., BaramatiDist: Pune

Vs.

The State of Maharashtra

CORAM: DR. S. RADHAKRISHNAN & SMT.ROSHAN DALVI, JJ.

DATED: 23RD OCTOBER, 2007

1. This is a Reference made by the Applicant who is a Magistrate inter alia taking up applications for maintenance filed by women under the provisions of Section 125 of the Criminal Procedure Code (Cr.P.C.). He has referred the facts of a case before him being Misc. Application No.245 of 2006 filed by one Sheetal Laxman Dhavale (Pawar) against her husb and Laxman Maruti Dhavale (Pawar) under the aforesaid provisions. The husband appeared pursuant to the notice issued by the Court and filed his say. The Applicant wife filed her evidence by way of affidavit of examination- in- chief. This was opposed by the Copponent/husband’s Advocate on the ground that such a procedure is not permitted under Section 126 in Chapter IX of the Cr.P.C and under Section 254 in Chapter XX of the Cr.p.C.

2. The learned Judge has therefore, referred the said matter to the High Couri for its opinion on the question whether examination- in-chief of a witness under Section 125 of the Cr.P.C can be accepted by way of affidavit. The Judge has himself considered in depth the aforesaid provisions and put his interpretation thereupon and referred the case for the opinion of this Court.

3. We may mention that to answer the question referred for the opinion of the High Court in the above Reference, we would require to consider the provisions of the aforesaid Chapter of the Cr.P.C alongside the provisions relating to the taking of evidence by way of examination- in- chief in Civil proceedings contained in Order XVIII Rule 4 of the Civil Procedure Code (C.P.C.) along with certain other analogous provisions in the C.P.C contained in Order M Rule 15 read with Section 26 of the C.P.C as also the Family Court’s Act, 1984.

4. We may mention that the purpose and object of all these aforesaid provisions must be first appreciated in order to understand the intent of the Legislature and the mode in which the procedure is required to be followed to achieve the object intended.

5. Chapter IX of the Cr.P.C deals with the order for maintenance of wives, children and parents.

6. The chapter came to be incorporated in the Cr.P.C in l9’t4 and has been last amended by the Amendment Act of 2001 with effect from 24th September, 2001.

7. It, therefore, relates to the provision of maintenance and not for punishment for an offence. It is, therefore, a proceeding in a family law and not in criminal law. The application for maintenance lies before a Magistrate in all places where the Family Courts are not established. This is for the convenience of the applicants in the proceedings so that they have access to justice in the courts having jurisdiction close to their place of residence.

8. The order which is required to be passed under Section 125 (l) of the Cr.P.C is to make a monthly allowance or an interim allowance. It is not a punishment for any offence by sentencing, fine etc.

9. For breach of the order of maintenance, the Magistrate entitled to levy fine as also imprisonment until payment is made of one month under Section 125(3) of the Cr.P.C. This provision is different from the orders passed in usual criminal trials.

10. Section 126 in Chapter IX of the Cr.P.C. deals with the territorial jurisdiction of the Court in which the application is to be preferred, and the procedure applicable in such applications. Section 126( I ) gives jurisdiction to the closest Magistrate where the application is required to be filed dependent upon the place of residence of the Respondent or the Applicant or where they had last resided together. Hence, in any place within the Magistrate’s jurisdiction where there is no Family Court, the applicant would be entitled to file an application for maintenance.

ll. Under Section 126(2) the evidence in such cases is required to be recorded by the Magistrate as in summons cases.

12. Chapter XX of the Cr.P.C deals with trial of summons cases by Magistrates. Section 254 in the said Chapter requires the Magistrate to “toke ell such evidence” as may be produced in support of the prosecution, hear the accused ar-d, “take all such evidence” as the accused produces in his defence. The Magistrate may issue summons upon any witness to attend and give evidence or produce a document or thing, for which reasonable expenses could be ordered to be deposited in the Court. It may be mentioned that in usual criminal trials of summons cases, the prosecution may lead evidence of its witness who may be cross examined by the accused. The accused may be heard upon such evidence and the accused himself may produce witnesses in defence, whose evidence may be led by the accused and who are liable to be cross examined by the prosecution.

13. Under the proviso to Section 126(2), if the Respondent is avoiding service or neglecting to appear in Court, the Magistrate is entitled and enjoined to proceed Ex-parte. The Ex-parte order is entitled to be set aside by the Respondent upon showing sufficient cause within 3 months of its passing. It must be appreciated that the provision contained in the aforesaid proviso is analogous to proceedings in civil trials and not in criminal trials. There is no provision for issue of summons, warrant of arrest, proclamation or attachment to compel the appearance of the Respondent under the provision of Chapter IX of the Cr.p.C. As against that, there is a provision for passing the Ex-parte order against the Respondent under the said proviso. This is analogous to the provisions contained in Order IX Rule 6 of the C.P.C. Further under the said proviso the Respondent is entitled to have the order set aside which proviso is analogous to Order IX Rule l3 of C.P.C. – there is no parallel in criminal trials under any provision of Cr.P.C.

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14. Under Section 126(3), the Magistrate’s Court dealing with such applications have the power to make an order for payment of costs as may be just. This is analogous to Section 35 of the C.P.C. – there is no parallel in criminal trials, under the other provisions of Cr.P.C.

15. Under Section 127 of the Cr.P.C any alterations of the maintenance amount granted by the Magistrate can be made for change in circumstances of the person receiving such allowance. Similarly under Section 127(2) of the Cr.P.C the order of maintenance made by the Magistrate may be cancelled or varied in consequence of any decision of competent Civil Court. Under Section 127(3) of the Cr.P.C an order of maintenance made by the Magistrate may be cancelled upon the remarriage of the woman applying for maintenance or from the date of the receipt of an amount by her upon her divorce or upon surrender of her right by her.

16. Further under Section 128 of the Cr.P.C the order of maintenance is to be enforced by the Magistrate in any place where the person against whom it is made may be. The amount of such maintenance is to be recovered as a fine. Consequently, the execution of the order would be under the provisions of Section 431 of the Cr.P.C and the amount would be recoverable as if it was a fine. Fine may be recovered under Section 421 of the Cr.P.C by issue of a warrant for attachment and sale of any movable property of the Respondent/Defaulter by issue of a warrant upon the Collector of the District authorising him to realise the amount by sale of the movable or immovable properties of the Respondent/ defaulter.

17. A reading of all the aforesaid provisions in Chapter IX of the Cr.P.C shows that the proceedings under the said Chapter are for a purpose diametrically different from all the other criminal proceedings in the Magistrate’s Courts under the other provisions of the Cr.P.C. These proceedings are essentially civil in nature. It is only because the recovery of maintenance by wives, children or parents are otherwise to be filed in the Family Courts and several Talukas have no Family Courts that, for the convenience of the applicants, the Magistrates have been empowered to determine the amount of maintenance or interim maintenance and pass orders for the payment of maintenance by the Respondents in their applications. To that end the Magistrates have the power of levying fine for breach of their order under (Section 125(3), to pass an ex-parte order if the Respondents avoid service (proviso to Section 126(2)), grant costs as are just (Section 126(3)) alter the amount of allowance due to change in circumstances (Section 127(l)), cancel or vary the order (Section 127(2)&(3)) and execute the order as levy or fine by issue of the necessary warrants or attachment of movable or immovable properties (Section 43 I r.w. Section 421).

18. The procedure for trial of summon s cases to be followed by the Magistrates for proceeding under Chapter IX of the Cr.p.C is, therefore, required to be appreciated in that light. The proceedings being in the nature of civil proceedings, the trial of those proceedings may also be analogous to the trials of civil proceedings. Upon the amendment to the Code of Civil procedure (C.P.C) by the Civil Procedure Code (Amendment Act, 2002) which came into effect from 1., July, 2OO2 the procedure required in civil trials may apply and suitably be impoi ted into the procedure for the trial of summons cases by the Magistrates under Section 254 of the Cr.P.C. The Magistrate would be required to “take ” all evidence on behalf of the Applicant as well as the Respondent under Section 254 of the Cr.p.C. The “taking” of such evidence would therefore, be governed by the provisions contained in Order XVIII of the C.p.C. The Rule 4 of Order XVIU relating to recording of evidence would apply after the amendment came into force in 2002 which is from 1., July, 2002.

19. Under the provision of Order XVIII Rule a(l) in every case the examination- in- chief of the witness is required to be on affidavit with copies being supplied to the opposite party. The provision of admissibility of the documents filed along with the affidavit would be subject to the orders ofthe Court.

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20. Under Order XVIII Rule 4(2) the cross examination and reexamination of the witness, whose evidence by affidavit has been furnished before the Court is to be recorded by the Court or by the Commissioner appointed by it.

21. Under Order XVIII Rule 4(3) the Court or the Commissioner shall record the evidence either in writing or mechanically in the presence of the Judge or the Commissioner.

22. Under Order XVIII Rule 4(4) the Commissioner may record such remarks in respect of the demeanour of the witness as he thinks fit as also the objection raised during recording of the evidence before him.

23. Under Order XVII Rule a(5) the Commissioner is required to submit his report to the Court appointing him within 60 days of the issue of the Commission work unless time is extended by such Court.

24. Consequently upon the coming into force of the C.P.C Amendment Act on and from l.t July, 2002 the provisions contained in Order XVIII Rule 4 of the C.P.C would apply to all the proceedings which are essentially civil in nature though filed under Chapter IX of the Cr.P.C. The “taking” of all such evidence as is produced by the Applicant as well as the Respondent is, therefore, required to be considered taking into account the aforesaid procedural requirements. Consequently the Magistrate “sltall” ‘oin every case ” under Chapter IX of the Cr.P.C take in evidence and record the evidence as per the mandate contained in Order XVIII Rule 4 of the C.P.C., though these proceedings, though civil in nature, are required to be tried as summons case by the Magistrate. The Magistrate would therefore, o’take” the evidence of examination- in-chief by affidavit. He shall consider the admissibility of the documents filed along with such evidence. He shall then either record the cross examination in writing or mechanically or appoint a Commissioner to record such cross examination.

25. The proceedings for maintenance of wives, children and parents would be tried by Family Courts under the provision contained in Section 7(2) of the Family Courts Act 1984 in all places which have a family Court.

26. Such proceedings would be tried by Family Courts in cases where Family Courts are established under the provisions of Section 8 of the Family Court’s Act, 1984. The Family Court would have the inherent jurisdiction to try a suit or proceedings for maintenance under Section 7(f) of the Family Courts Act (F.c.A.).

27. Under Section 9 of F.C.A it is make efforts for settlement of all

28. Under Section 1l of the F.C.A in camera if the Family Court so camera if either party so desires. duty of the Family Courts to proceedings before it. the proceedings could be held desires, and shall be held in the the

29. Under entitled to Section 12 of the F.C.A the Family Court would be secure the service ofany medical or welfare expert.

30. Under Section 13 of the F.C.A a party would not be entitled, except upon permission of the Court, to be represented by a legal practitioner.

31. Under Section 14 of the F.C.A the Family Court is entitled to receive in evidence by way of reports, statements, documents, information or matter even if it is not otherwise admissible under the Indian Evidence Act, 1872.

32. Under Section 15 of the F.C.A the Judge is required to record only a memorandum of the substance of what the witness deposes which shall form a part of its record.

33. Under Section 16 of the F.C.A (which is analogous to Section 296 of the Cr.P.C.) formal evidence may be led by affidavit. The FCA came into force in/on l’t December, 1986 in the State of Maharashtra. The aforesaid provisions which apply to all the proceedings which may be filed in the Family Court would, be required to be applied, as far as may be, to the proceedings taken out in the Magistrate’s Court under Chapter IX of the Cr.P.C also. This would be in keeping with the object and purpose of the Family Courts Act and as well as Chapter IX of the Cr.P.C.

34. It may be mentioned that the object of the Family Courts is inter alia to secure speedy settlement of the disputes relating to marriage and family affairs and the object of Chapter IX of the Cr.P.C., as set out by the learned Magistrate in his opinion under reference, is the speedy remedy provided to women and children to obtain maintenance to prevent vagrancy and destitution. Therefore, the provisions of the Family Courts Act so far as they relate to the procedure set out in Chapter fV thereof must be followed by the Magistrates who try applications under Chapter IX which are essentially civil in nature and analogous to proceedings under the Family Court’s Act. Consequently in the matters which go to trial under Chapter IX of the Cr.P.C the Magistrate shall take “all the evidence” by affidavit of examination- in-chief produced in support of the application. He shall consider the admissibility of the documents if any, filed along with such affidavit under Section l4 of the F.C.A whether or not, they are admissible under the Indian Evidence Act, 1872. He shall then either himself record the cross examination and reexamination or appoint a Court Commissioner to record such cross examination and re- examination. He need not take the evidence of only formal character on afflrdavit after the amendment to the C.P.C on l”,July, 2002. This would be in keeping with the judgment of the Apex Court in the case of Salem Advocate Bar Association. Tamil Nadu Vs. Union of India 2005(5) ALL MR.(SC) 876.ÿ35. We may further mention that the afhdavit of examination- inchief required to be ‘otaken ” as evidence may be the affidavits filed by the applicant as also the Respondents by way of the affidavit in support of the application or the application itself if it contains the solemn affirmation as to its truthfulness. In such case duplication by a further affidavit of examination- in- chief may be unnecessary and avoided. We may refer to the decision in the case of Bar Council of Maharashtra and Goa Vs. S.hamrao Vishnu Kunjir. A.I.R. 2006 Bombay. 167 by the Division Bench of this Court to which one of us (Roshan Dalvi, J) was the party. In that case after considering the object and purpose of the salutary provision in the amended Order XVIII Rule 4 of the C.P.C and after considering the aforesaid judgment in the case of Salem Bar Association supra, the Division Bench further considered the provision contained in Order VI Rule l5(4) r.w. Section 26(2) of the C.P.C. Hence, where any pleading is accompanied by an affidavit in support ofthe said pleadings, the pleading itself can be treated as an affidavit of examination- inchief, and be received in evidence as examination- in- chief of that party. This would apply equally to the Applicants and Respondents in an application under Chapter IX of the Cr.p.C.

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36. We may also refer to the provisions relating to the service under Section 126{2) of the Cr.P.C. It may be mentioned that the Respondent against whom the application is made is required to be served with a copy of the said application. Chapter IX is silent as to how the service is to be effected. The service of such proceedings would not necessarily be required to be effected upon the Respondents as they are effected upon the accused in criminal trials. In view of the fact that the applications under Chapter IX of Cr.P.C are of civil nature and analogous to proceedings in the Family Courts, service of such applications also need not be made as are made upon the accused in the criminal trials. The service of these proceedings ate also required to be made as per the provisions contained in the C.p.C. Consequently as per the provision contained in Order V Rule 9 of the C.P.C the Respondent to an application under Chapter IX of Cr.P.C is required to be served as a Defendant in a Civil Suit by service of a summon s either directly in person, by the Applicant or by an Officer of the Court or by registered post acknowledgment due or by speed post or such courrier service as are approved by the High Court or the Court in which the application is filed, being the Magistrate’s Court as also by a fax message or E-mail services provided by the Rules made by the High Court. The Magistrates may therefore, allow service upon the Respondent in any one of the aforesaid ways for all the applications filed under Chapter IX of the Cr.P.C in their Courts.

37. Having considered at length the purpose, object and the separate provisions of Chapter IX to Cr.P.C r.w. Chapter IV of the Family Courts Act and Order XVII Rule 4 as also Order VI Rule 15(4) and Section 26(2) of the C.P.C, wo answer the question under Reference in the affirmative. We may mention that we have gone further than the said question and our answer shall be read accordingly.

38. We are gratified to note that the learned Civil Judge (J.D.), J.M.F.C has himself rightly interpreted the provisions of law before made in the application, made under Chapter IX of Cr.P.C. We direct that henceforth all the applications before all the learned Magistrates trying applications under Chapter IX of the Cr.P.C as also of the Family Courts in Maharashtra shall follow the aforesaid procedure, keeping in view the amended C.P.C.

39. Since this order lays down the most effective and expedient procedure to be followed, a copy of this order shall be sent to all the Magistrate Courts as well as all the Family Courts in the State of Maharashtra by the Registrar- General of this Court expeditiously.

40. The Reference is answered accordingly. The procedure herein shall be followed by all the Magistrate Courts and Family Courts forthwith.

(sMT. ROSHAN DALVT, J.) (DR. S. RADHAKRISHNAN, J.)

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